CWP No.3212 of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
CWP No.3212 of 2009
Date of decision July 17, 2009
Satya Pal ....... Petitioner
Versus
The Presiding Officer, Labour Court, Ambala and others
........ Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
Present:- Mr. J. S. Bedi, Advocate
for the petitioner.
Mr. D. S. Nalwa, Additional Advocate
General, Haryana for respondent Nos. 2 to 4.
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1. Whether reporters of local newspapers may be
allowed to see the judgment ?
2. To be referred to the reporters or not?
3. Whether the judgment should be reported in the
digest?
K. Kannan, J(oral).
1. The writ petition challenges the award
passed by the Labour Court, Ambla dismissing the reference sought at the
instance of the workman claiming that he had been illegally terminated.
According to him the was working as a daily wager as a Mali-cum-
Chowkidar from 6.6.2000 and he had been in continuous service till he was
lawfully terminated on 8.1.2004. On behalf of the respondent-Management
a plea was taken that he had voluntarily abandoned service on 8.1.2004
and he had not joined subsequently. The Labour Court rejected the
contention of the Management and found on weighty evidence placed on
behalf of the workman of WW-1 and WW-50 that the workman was in
employment till 8.1.2004 and he had established that he had worked for
240 days continuously before the termination. The Labour Court, however
still did not grant relief sought for on the ground that his engagement could
qualify for exception to the term retrenchment under Section 2 (oo) (bb)
CWP No.3212 of 2009 2
and denied to him any relief.
2. Learned counsel appearing for the petitioner
argued that the decisions relied on by the Labour Court applied to cases
where engagement had been on a specific contract for a specified period
and again the decisions that took the guidance from Secretary, State of
Karnatka and others Vs. Umadevi and others 2006 (4) SCC 1 ought to
understood as applicable only to civil services and the service with
respondent-Management could not be likened to civil services.
3. Although, the decision of the Hon’ble Supreme
Court in Uma Devi’s case (supra) was with reference to a civil service and
the effect of illegal appointments the principle enunciated in the said
judgment clearly held down that in respect of any public appointment which
are governed by statutory rules and regulations if there is any violation,
mere length of service would not afford to a workman any right to seek for
either regularization or reinstatement. This principle has been followed in
several decisions and applied in Labour Jurisprudence also in cases where
violation of Article 14 and 16 of the Constitution is made out. The
respondent-Management is a department of the Government and no
recruitment rule could provide for employment without the normal process
of selection through advertisement or sponsorship through employment
exchange. If the award of the Labour Court would fail in any way, it was its
assumption that the termination of services did not fall within the definition
of retrenchment. Even for applying Section 2 (oo) (bb) there shall be
specific contractual terms that sets out the actual tenure of employment. An
ad hoc employment or employment as a daily wager ought not to be
always understood as a contractual employment that would fall within the
excepted categories of retrenchment. Having regard to the finding that the
workman had put in 240 days before his termination and having further
regard to the fact that the Labour Court was rejecting the plea on behalf of
CWP No.3212 of 2009 3
State that he had been employed only in a spell of three months in the
previous years, I accept the contention of the workman that he had been
engaged from 6.6.2002. By such reckoning, the workman would have put
in about 3 years and 7 months of employment. Having regard to the fact
that his services were terminated in 2004 and he has been fighting for
justice for more than 5 years, the workman shall be entitled to
compensation that would fit with the status of his employment and length
of service.
4. Learned counsel for the petitioner would submit
that in the event of compensation he shall be granted at least 20,000/- per
year of service. There is no hard and fast rule relating to compensation
and it is not possible to discern from any judgment of this Hon’ble Court or
from the Hon’ble Supreme Court that there should be a particular sum of
over 20,000/-. The guidance that has come through pronouncements of
the Hon’ble Supreme Court have been that the Court shall have due regard
to the hard realities of life of a workman losing his job who had been
engaged as a daily wager. Committing the state or its functionaries to
large fiscal burden would equally be inappropriate without diluting the
effect of violation of Article 14 and 16 that the new dispensation in Uma
Devi’s case (supra) and other decisions have laid down, in my view, the
appropriate compensation would be Rs.35,000/- which is payable within a
period of 2 months and if there is any default, the amount shall bear simple
interest at the rate of 7.5% per annum. The order of the Labour Court is
set aside. The writ petition is disposed of in the above terms.
(K. KANNAN)
JUDGE
July 17, 2009
archana